IN THE COURT OF APPEALS
AT KNOXVILLE
FILED
October 30, 1998
JOSEPH R. CARUTHERS, ) CUMBERLAND PROBATE AND FAMILY
) COURT Cecil Crowson, Jr.
) C.A. NO. 03A01-9712-PB-00539 ourt Clerk
Appellate C
Plaintiff-Appellee, )
)
vs. )
) HON. JAMES A. BEAN
) JUDGE
)
DIANE L. CARUTHERS, )
)
Defendant-Appellant ) AFFIRMED AND REMANDED
M. JANE POWERS, The Powers Law Firm, Crossville, for Appellant.
SHARON SERRA, Crossville, for Appellee.
OPINION
McMurray, J.
This appeal is from a judgment in a divorce action heard in
the Probate and Family Court of Cumberland County. The appellant
challenges the trial court’s division of the marital estate, the
adequacy of her hearing before the court, and the trial court’s
award of $5,000.00 to the appellee for improvements to the
appellant’s separate property. We affirm the judgment of the trial
court.
Before the trial which resulted in the judgment giving rise to
this appeal, the court entered a pretrial order pursuant to Rule
16.05, Tennessee Rules of Civil Procedure.1 The pretrial order
provides as follows:
Upon announcement of counsel for the parties that
all interested persons have participated in a mediation
session and that certain issues were resolved, with only
one issue remaining unresolved. Therefore, it is hereby
ORDERED, ADJUDGED and DECREED, that the parties have
resolved to stipulate grounds for divorce, pursuant to
T.C.A. § 36-4-129; that there were no children born to
this marriage; and that the parties have divided and
distributed all separate and marital property. Having
mediated and resolved these issues, this matter is set
for final hearing on May 30, 1997, at which time the sole
issue to be litigated is the plaintiff's claim against
the defendant for $5,000.00 for the costs of improvements
made to defendant's separate property.
ENTER this 6th day of May, 1997.
In accordance with the provisions of the pretrial order, a
hearing limited to the sole issue reserved for trial in the
pretrial order was held. The court resolved the issue in favor of
the plaintiff and entered judgment accordingly. Defendant now
appeals, presenting the following issues for our consideration:
A. The division of marital property by the trial court
was not equitable and is contrary to the weight of
the evidence introduced at trial.
B. The parties were not afforded a full and complete
trial due to the time constraints imposed by the
trial court as appellant was precluded from pre-
senting full and adequate proof at the trial.
1
The pretrial order was approved for entry by the attorneys for both parties.
2
C. The trial court reached its conclusion in this
cause concerning the division of the marital pro-
perty based upon inadequate proof.
D. The trial court's award of $5,000.00 to the appel-
lee for improvements he purportedly made to the
appellant's separate property is without basis in
law or the evidence presented at trial and is
precluded by the statute of frauds.
The framing of the issues suggests that the appellant does not
grasp the significance and effect or purpose of a pretrial order.
Rule 16.05 provides as follows:
16.05. Pretrial Orders. — After any conference held
pursuant to this rule, an order shall be entered reciting
the action taken. This order shall control the subse-
quent course of action unless modified by a subsequent
order. The order following a pretrial conference shall
be modified only for good cause shown. (Emphasis added.)
A pretrial order for all practical purposes supplants the
pleadings regarding the issues to be tried. "The parties are
bound by the issues reserved in the pretrial order and may not
later inject a new issue except in exceptional cases ... . ... If
defendant's counsel had desired to present issues at the trial
which were not contained in the pretrial order, he should have
asked for an amendment to the pretrial order." K a t h r y n N e u s p i c k l e
a n d L a r r y D . N e u s p i c k l e v . T h e C i t y o f K n o x v i l l e , T e n n e s s e e , 4 8
F . R . D . 4 4 1 ( 1 9 6 9 ) .
3
Three things are worthy of note. First, Rule 16 of the
Tennessee Rules of Civil Procedure, as applied here, basically
follows the Federal Rules. Second, this is not such an exceptional
case as to require the trial court to allow issues not contained in
the pretrial order to be addressed. Third, the attorney for the
appellant in this case made no effort to have the pretrial order
amended. The pretrial order is binding.
Further Rule 36(a), Tennessee Rules of Appellate Procedure
provides in pertinent part that "[n]othing in this rule shall be
construed as requiring relief be granted to a party responsible for
an error or who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error."
We believe that this principle is also applicable to this case.
Assuming for purposes of discussion only, and for no other reason,
that the trial court committed error, the appellant participated in
the acts which led the court into limiting the issues and then took
no action whatever to have the pretrial order amended.
As to the last issue, the evidence does not preponderate
against the findings and judgment of the trial court. Further, we
find no basis for the application of the statute of frauds.
As to the claim that appellant was not afforded a full and
complete trial due to the time constraints imposed by the trial
court, we find this issue to be without merit. No objection was
4
raised in the trial court nor was an offer of proof made or
permission requested to do so.
Furthermore, the appellant's challenge to the sufficiency of
her hearing before the trial court is waived for failure to raise
this issue at trial and for failure to cite any authority for her
argument or make reference to the record for facts relied upon.
See Court of Appeals Rule 6 and Tennessee Rules of Appellate
Procedure, Rule 27(a)(7).
The appellee has asked that we find this appeal to be
frivolous pursuant to the provisions of T.C.A. § 27-1-122. Upon
consideration, we are of the opinion that while it is questionable
as to whether appellant's appeal is sufficiently meritorious to
avert sanctions for a frivolous appeal, we, in our discretion,
decline to impose sanctions.
We affirm the judgment of the trial court in all respects.
Costs are assessed to the appellant and this case is remanded to
the trial court for such other and further action as may be
necessary to carry out the judgment of the court.
_______________________________
Don T. McMurray, Judge
CONCUR:
___________________________________
Houston M. Goddard, Presiding Judge
5
___________________________________
Herschel P. Franks, Judge
6
IN THE COURT OF APPEALS
AT KNOXVILLE
JOSEPH R. CARUTHERS, ) CUMBERLAND PROBATE AND FAMILY
) COURT
) C.A. NO. 03A01-9712-PB-00539
Plaintiff-Appellee, )
)
vs. )
) HON. JAMES A. BEAN
) JUDGE
)
DIANE L. CARUTHERS, )
)
Defendant-Appellant ) AFFIRMED AND REMANDED
JUDGMENT
This appeal came on to be heard upon the record from the
Probate and Family Court for Cumberland County, briefs and argument
of counsel. Upon consideration thereof, this Court is of opinion
that there was no reversible error in the trial court.
We affirm the judgment of the trial court in all respects.
Costs are assessed to the appellant and this case is remanded to
the trial court for such other and further action as may be
necessary to carry out the judgment of the court.
PER CURIAM